State v. St. John, Minn.Ct.App., 5/19/2014. A Morehead officer stopped Ms. St. John’s vehicle because it didn’t have its headlights on. Suspecting that Ms. St. John was intoxicated the officer asked her to perform several field sobriety tests, which she failed. Ms. St. John refused to submit to chemical testing. She eventually pled guilty both to second degree DWI (refusal) and to third degree DWI (under the influence). Both are gross misdemeanors. The court accepted the pleas and found Ms. St. John guilty of both offenses. Everyone agreed that the court could only sentence Ms. St. John on one of the two offenses. Ms. St. John wanted to be sentenced for the third degree DWI in order, she hoped, to avoid forfeiture of her vehicle. The trial court said, no, that the third degree DWI was a lesser included offense of the second degree test refusal. As a result, the court could/would only sentence on the top count, the test refusal.
On appeal, the state conceded that the DWI offense is not a lesser included offense of the test refusal offense. This meant that the trial court should have (as it originally did) accepted both guilty pleas, and found Ms. St. John guilty of both offenses. She could still only be sentenced on one of the two offenses because of the “single behavioral incident” rule, 609.035; however, which one, is a question of law. The supreme court said nearly a decade ago in State v. Kebaso, 713 N.W.2d 317 (Minn. 2006) that section 609.035 contemplated that a defendant would be punished for the most serious of offenses arising out of a single behavioral incident; that’s because sentencing on the top count covers the waterfront.
The question here, though, is which of these two gross misdemeanors is the “most serious” offense. The court of appeals decided that driving drunk trumps refusing to be tested to see if you are driving drunk. The court remands back to the trial court to give Ms. St. John what she wanted: a sentence for third degree DWI.
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